IN THE SUPREME COURT OF FLORIDA PURDIE BURKES Appellant/Petitioner SUPREME COURT CASE NO. 07-328 vs. DCA CASE NO. 5D05-3523 STATE OF FLORIDA, Appellee/ / AMENDED PETITIONER S BRIEF ON JURISDICTION (EXPRESS AND DIRECT CONFLICT) JAMES S. PURDY PUBLIC DEFENDER SEVENTH JUDICIAL CIRCUIT SUSAN A. FAGAN ASSISTANT PUBLIC DEFENDER FLORIDA BAR NO. 0845566 444 Seabreeze Boulevard, Suite 210 Daytona Beach, Florida 32118 (386) 252-3367 COUNSEL FOR APPELLANT
TABLE OF CONTENTS PAGE NO. TABLE OF CITATIONS ii STATEMENT OF THE CASE AND FACTS 1 SUMMARY OF ARGUMENT 4 ISSUE THE FIFTH DISTRICT APPELLATE COURT DECISION DIRECTLY AND EXPRESSLY CONFLICTS WITH THE DECISIONS OF THIS COURT THAT DEFINE A DISCOVERY VIOLATION AS A SURPRISE OR AMBUSH TACTIC BY THE STATE AND THE DECISIONS OF THE FOURTH DISTRICT THAT DO NOT LIMIT THE DISCOVERY REQUIREMENT OF FLORIDA RULE OF CRIMINAL PROCEDURE 3.220(b) TO ONLY WRITTEN OR RECORDED POLICE INVESTIGATIVE REPORTS. 6 CONCLUSION 10 CERTIFICATE OF SERVICE 11 CERTIFICATE OF FONT 11 APPENDIX 12 i
TABLE OF CITATIONS CASES CITED: PAGE NO. Alfaro v. State, 471 So.2d 1345 (Fla.4th DCA 1985) 4 Burkes v. State, 31 Fla. L. Weekly D2888 1 (Fla.5th DCA) November 17, 2006) Hudson v. State 4 682 So.2d 666 (Fla. 4 th DCA 1996) Pender v. State 4 700 So.2d 664 (Fla.1997) Richardson v. State 2 246 So.2d 771 (Fla.1971) Scipio v. State 4 928 So.2d 1138 (Fla. 2006) State v. Schopp 6 653 So.2d 1016 (Fla.1995) OTHER AUTHORITIES CITED: Florida Rule of Criminal Procedure 3.220(b) 2 ii
STATEMENT OF THE CASE AND FACTS The State charged Mr. Burkes with DUI manslaughter and relied on the testimony of Corporal Brian Rayner, a traffic homicide investigator with the Florida Highway Patrol. See attached appendix of opinion in Burkes v. State, 31 Fla.L.Weekly D 2888( Fla. 5 th DCA November 17, 2006). Corporal Rayner utilized spray paint to designate the jaw marks left by Mr. Burkes vehicle as part of Corporal Rayner s traffic investigation. Id. The State relied on the yaw marks to support the State s theory that Mr. Burkes drifted off the paved roadway and struck the bicyclist directly from behind as he was coming back onto the roadway. Id. Mr. Burkes countered the State s theory with the testimony of Mr. Sal Fariello, a defense expert witness in accident reconstruction, to support the defense theory that the bicyclist was riding on the white fog line mark in the far right limit of the pavement and was side-swiped by Mr. Burkes who was unable to see [the bicyclist] due to the darkness and fog... Id. Mr. Fariello testified when he visited the accident scene, some thirteen months after the accident occurred, the paint marks were still present, which he used, as well, to reach his conclusions regarding the cause of the accident. Id. When the defense rested at the conclusion of Mr. Fariello s testimony, the court adjourned for the day. The next morning, the State recalled Corporal Rayner 1
as a rebuttal witness. Corporal Rayner testified he had been requested by the prosecutor to go to the accident scent to further investigate whether the paint marks were still present, which was approximately a month after Mr. Fariello s visit. Id. Corporal Rayner further testified that none of the paint marks were still there. Corporal Rayner opined that this was not a surprise to him since the paint marks he uses are temporary and only last two or three months. Mr. Burke s trial counsel immediately objected to Corporal Rayner s rebuttal testimony, contending that any testimony about Corporal Rayner s mid-trial visit was a discovery violation. The trial court did not conduct a Richardson 1 inquiry, but, instead, concluded that rebuttal witnesses need not be disclosed and overruled defense counsel s objection. On appeal, Mr. Burkes argued that rebuttal witnesses were subjected to the discovery requirements imposed by Florida Rule of Criminal Procedure 3.220(b). The Fifth District Appellate Court agreed that rebuttal witnesses are subject to discovery requirements of rule 3.220(b), but held that no discovery violation occurred. Specifically, the Fifth District interpreted rule 3.220(b) to not require disclosure by the State of the subsequent investigation by Corporal Rayner because it was not reduced to written or recorded form. Id. D2889. Mr. Burkes conviction was affirmed and he timely moved for rehearing, 1 Richardson v. State, 246 So.2d 771 (Fla. 1971) 2
which was denied by the Fifth District on January 17, 2007. Mr. Burkes filed a timely notice to invoke this court s discretionary jurisdiction on February 19, 2007. This brief on jurisdiction follows. 3
SUMMARY OF THE ARGUMENT The decision of the Fifth District Court of Appeal that a police investigation and report, not reduced to written or recorded form, is not discoverable material, because it did not involve a change in a witness testimony, under Florida Rule of Criminal Procedure 3.220(b), conflicts directly and expressly with the decision of this court in Scipio v. State, 928 So.2d 1138 (Fla. 2006) The linchpin of this Court s holding in Scipio, as to whether any oral or written material is discoverable material, is procedural prejudice. This is caused when the discovery violation materially hindered the Defendant s trial preparation or strategy. More importantly, this Court stressed in Scipio that a critical factor, as to whether a discovery violation occurs and results in prejudice, is when the State completely turned the tables on the defense by [a] surprise gotcha tactic. See also Pender v. State, 700 So.2d 664 (Fla. 1997). The Fifth District s interpretation of Florida Rule of Criminal Procedure 3.220(b), requiring only a written or recorded police investigation report to be disclosed to the defense is also in direct and express conflict with the decisions of the Fourth District Court of Appeal in Hudson v. State, 682 So.2d 666 (Fla.4th DCA 1996), and Alfaro v. State, 471 So.2d 1345 (Fla.4th DCA 1985), which hold that rule 3.220(b) requires all police and investigative reports of any kind 4
prepared for or in connection with the case to be disclosed to the defense. Accordingly, in order for any continued confusion or uncertainly caused by the conflict created between the decision of the Fifth District and the decisions of this Court and the Fourth District Court of Appeal, this Court should accept jurisdiction to resolve this conflict. 5
ARGUMENT THE FIFTH DISTRICT APPELLATE COURT DECISION DIRECTLY AND EXPRESSLY CONFLICTS WITH THE DECISIONS OF THIS COURT THAT DEFINE A DISCOVERY VIOLATION AS A SURPRISE OR AMBUSH TACTIC BY THE STATE AND THE DECISIONS OF THE FOURTH DISTRICT THAT DO NOT LIMIT THE DISCOVERY REQUIREMENT OF FLORIDA RULE OF CRIMINAL PROCEDURE 3.220(b) TO ONLY WRITTEN OR RECORDED POLICE INVESTIGATIVE REPORTS. This Court s decision in Scipio v. State, 928 So.2d 1138 (Fla. 2006), clarified that a discovery violation is rooted in procedural prejudice. This Court defined procedural prejudice in Scipio as whether there is a reasonable possibility that the discovery violation materially hindered the defendant s trial preparation or strategy. Id. at 1150 (quoting State v. Schopp, 653 So.2d 1016, 1020 (Fla.1995)). Further, this Court emphasized in Scipio the purpose of discovery is to prevent unfair surprise and trial by ambush. Id., 1144 (citations omitted). The Fifth District Court of Appeal in Burkes v. State, 31 Fla. L. Weekly D2888 (Fla.5th DCA November 17, 2006), held, however, that this Court s decision in Scipio, was limited to only a material alteration to an existing written or recorded statement previously provided by the State to the defendant or obtained 6
by the defendant at deposition. Id., D2889. Sub judice, the State ambushed Mr. Burke s defense by not disclosing, prior to the rebuttal testimony of the State s expert, Corporal Rayner, that Corporal Rayner had conducted a subsequent, mid-trial, investigation of the accident scene and the results of his undisclosed investigation. The Fifth District s opinion does acknowledge that the sole critical issue in Mr. Burkes trial was whether the jury believed Corporal Rayner s opinion or the opinion of the defense expert, Sal Fariello, as to the cause of the accident which led Mr. Burkes to be charged with DUI manslaughter. Moreover, Corporal Rayner s surprise rebuttal testimony concerned his undisclosed mid-trial investigation of the accident scene. The purpose of this midtrial investigation, done at the prosecutor s request, was to determine if paint marks were still present at the accident scene, which Mr. Fariello had previously testified he had utilized during a recent visit to the accident scene in order to form his opinion as to the cause of the accident. This is just the type of unfair surprise and trial ambush tactic condemned by this Court in Scipio, supra, and Pender v. State, 700 So.2d 664 (Fla. 1997). Further, it makes no difference under these decisions, as the Fifth District incorrectly concludes, whether or not Mr. Fariello provided the State with any written report or that the prosecutor orally discussed 7
with Corporal Rayner going out to the accident site to conduct the undisclosed mid-trial investigation, when the results of the investigation are submitted into evidence by the prosecutor. The Fifth District s opinion also conflicts with the decisions of the Fourth District Court of Appeal in Hudson v. State, 682 So.2d 666 (Fla.4th DCA 1996), and Alfaro v. State, 471 So.2d 1345 (Fla.4th DCA 1985). These decisions hold that Florida Rule of Criminal Procedure 3.220(b)(1)(B), requires that the State must product all police and investigative reports of any kind prepared for or in connection with the case. In fact, the Fourth District in Alfaro directly addressed an undisclosed medical examiner s accident reconstruction evaluation done at the prosecutor s request, from which the medical examiner opined that the defendant was the driver of the vehicle responsible for the DUI manslaughter accident. The failure of the State to disclose the medical examiner s accident reconstruction evaluation to the defense was found in Alfaro to constitute a discovery violation that required a new trial because the identity of the responsible driver was the critical issue in that case. Accordingly, the Fifth District s opinion directly and expressly conflicts with each of the aforementioned decisions notwithstanding Corporal Rayner s undisclosed accident scene investigation being done at the request of the 8
prosecutor or not being in written or recorded form as held by the Fifth District. Such conflicting case law, which involves the critical issue as to what is discoverable material, requires resolution by this Court. 9
CONCLUSION Discretionary review should be granted based on direct and express conflict caused by misapplication of this Court s holdings in Scipio v. State, 928 So.2d 1138 (Fla. 2006), and Pender v. State, 700 So.2d 663 (Fla.1997), and because the opinion directly and expressly conflicts with the holdings of Fourth District Court of Appeal in Alfaro v. State, 471 So.2d 1345 (Fla.4th DCA 1985), and Hudson v. State, 682 So.2d 666 (Fla. 4 th DCA 1996). Respectfully submitted, JAMES S. PURDY PUBLIC DEFENDER SEVENTH JUDICIAL CIRCUIT SUSAN A. FAGAN ASSISTANT PUBLIC DEFENDER Florida Bar No. 0845566 444 Seabreeze Boulevard, Suite 210 Daytona Beach, FL 32118 (904) 252-3367 COUNSEL FOR APPELLANT 10
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been hand- delivered to the Honorable Bill McCollum, Attorney General, 444 Seabreeze Boulevard, Fifth Floor, Daytona Beach, FL 32118, via his basket at the Fifth District Court of Appeal, and mailed to Purdie Burkes, 33852 Tarawood Drive, Leesburg, Florida 34748, on this date of March 14, 2007. SUSAN A. FAGAN ASSISTANT PUBLIC DEFENDER CERTIFICATE OF FONT I HEREBY CERTIFY that the size and style of type used in the brief is 14 point proportionally spaced Times New Roman. SUSAN A. FAGAN ASSISTANT PUBLIC DEFENDER 11
IN THE SUPREME COURT OF FLORIDA PURDIE BURKES, Appellant/Petitioner SUPREME COURT CASE NO.07-328 vs. FIFTH DCA CASE NO. 5D05-3523 STATE OF FLORIDA, Appellee/Respondent / APPENDIX TO PETITIONER S AMENDED BRIEF ON JURISDICTION JAMES S. PURDY PUBLIC DEFENDER SEVENTH CIRCUIT Susan A. Fagan Fla. Bar #0845566 Assistant Public Defender 444 Seabreeze Boulevard Daytona Beach, Fl 32118 386-252-3367 Attorney for Appellant/Petitioner 12